Teresa Hommel
www.WheresThePaper.org
Board of Elections in the City of New York
December 29, 2009
Hearing on the Selection of Optical Scan
Voting Systems
Thank you
for the opportunity to present information to you, to assist you in selecting
an optical scan system for New York City.
I urge you to
select the Dominion ImageCast optical scanner voting system rather than the
ES&S DS200.
I will
briefly discuss the following concerns:
1. Vendor
History of Openness and Responsibility
2. System
Security
3. Voter
Privacy
4. Florida
Study: Design Flaws Caused Overvotes to be Cast
5. Handling
of Write-in Votes
6. Future
Legal Status of Vendor
7. Vendor
Attention to NYC
In addition
I will comment on our State Board of Elections’ failure to release information
that is necessary for public evaluation of the two scanner systems that the
Board certified.
1. Vendor History of Openness and
Responsibility
Dominion
Dominion is
a small, relatively new company. They are eager to please. They are open about their
product and have not concealed it from responsible independent, public
scrutiny.
--My
December 22 letter to the Commissioners[1]
related how Dominion responded to my request to bring their Election Management
System for inspection by me and another election integrity activist – they
brought the system and demonstrated it fully, answering all questions.
--Dominion
is the only vendor to invite any election integrity activist to read their
source code, to the best of my knowledge.
ES&S
Product
Failure: ES&S
has a history of repeated failures to provide working equipment and competent
technicians. This history shows their inability and/or disdain for delivering a
quality product.
1. “ES&S - the Midas Touch in Reverse” (3
pages)
http://www.wheresthepaper.org/09/MidasTouchInReverse.htm
2. “ES&S Election Problem Log - 2009 to
2006” (31 pages)
http://www.wheresthepaper.org/09/ESS_ProblemLog2009_2006.htm
3. “ES&S in the News - A Partial List of
Documented Failures up to 2006” (51 pages)
http://www.wheresthepaper.org/09/ESSinthenews.pdf
Bullying: ES&S has used their own failures
with regard to equipment and service as opportunities to bully their clients.
One well-known example is described in the “Case Study of Angelina County,
Texas,” where ES&S threatened to withdraw support when the county had to
meet legal requirements, and by doing so ES&S was able to dictate
additional conditions for the use of their equipment by the county.
4. “Vendors are Undermining the Structure of
U.S. Elections” (54 pages)
http://www.wheresthepaper.org/09/VendorsUndermineUSElections.pdf
Case Study of Angelina County Texas,”
pages 9-12
History
of violations of state laws, civil fines and injunctions, ethical violations,
breaches
of contract, and less than satisfactory performance
These
categories are used by the New York State Comptroller to assess “contractor
responsibility” before allowing the state to make contracts with a vendor.
Activists supplied the comptroller’s office with much information and evidence
of irresponsibility on the part of long-established voting system vendors. It
is unclear why the comptroller ignored the information and evidence, and why he
did not suggest to the State Board of Elections to commission development of a
state-owned system. Oklahoma commissioned development of their own scanner
system at low cost, and has been satisfied with it for over a decade.
The details
of ES&S’s “irresponsibility” occupy pages 7 through 12 of the report below.
5. “Voting System Companies Fail to Meet New
York State’s Requirements for
‘Responsible Contractors’ ” (20 pages)
http://www.wheresthepaper.org/09/IrresponsibleContractors070710.pdf
Secrecy: ES&S has a long history of secrecy about their products. They
have used a variety of means, ranging from legal threats to plain refusal to
comply with the law, to prevent examination of their equipment after election
irregularities or requests by public officials. One well-known example is
ES&S’s refusal to allow the state of California to review ES&S
software, noted on page 9 in attachment 5 on Contractor Responsibility.
2. System Security
System
security means that the system should resist human interactions that would
corrupt the votes and tallies.
In New
York’s Erie County, however, in the November 3, 2009 pilot election, ES&S’s
“Election Management System” (EMS) enabled and allowed the Board of Elections
staff to program the ballots incorrectly so that votes were switched and/or
inaccurately tallied. If an outside hacker had done this, everyone would have
been horrified. Because it was an apparently innocent mistake, we need to look
at the software and ask,
Why did the software enable and allow this kind of mistake,
whether
innocent or malicious?
Why didn’t the software at least put up a warning message, such as
“ERROR -- Candidate 1
votes will go to Candidate 2” and log the
making of the error so that the person who made it could be
identified?
This is a
security flaw in the design of ES&S’s software, and New York City should
not choose a system that enables this kind of foreseeable human mistake to be
made.
ES&S
equipment has a history of vote switching. In the attached map, note that this
has been an uncorrected problem for many years.
6. “Vote-Switching Software Provided by
Vendors” (2 pages)
http://www.wheresthepaper.org/09/MapOfVoteSwitching.pdf
This
security flaw is made more serious by the fact that no jurisdiction audits
their electronic vote-counting sufficiently to find all errors. Only the most
glaring errors are noticed, and there have been many of these, causing
additional work for local boards of elections as well as loss of public
confidence.
7. Ballot-Scanner Voting System Failures in the
News – A Partial List (63 pages)
http://www.wheresthepaper.org/OpScansIntheNews.pdf
3. Voter Privacy
In the pilot
use of scanners upstate, the most frequent complaint was the lack of privacy.
The large
screen on the ES&S scanner creates privacy problems. Despite the privacy barriers
on the sides of the scanner, voters who are waiting in line to scan their
marked ballots, as well as some poll workers, will be able to see information
about the ballot being scanned, such as whether the voter has undervoted a
particular race, or has overvoted and either accepted the overvote or asked for
his or her ballot to be returned. The positioning and adequate smaller size of
the Dominion screen next to the scanner is more private.
4. Florida Study: Design Flaws Caused Overvotes to be Cast
A carefully
researched report by Mary Garber, Research Director for the Florida Fair
Elections Center, has compared the rate of overvotes for the 5 different
scanners used in Florida in 2008. Findings are on page 16 (bold emphasis
added):
“7. Extremely poor overvote performance by the [ES&S] DS200
accounted for a large portion of the state's
no-valid-vote rate --
particularly for in-person voting when overvote protection on the machine
should have prevented excessive overvoting. Yet, more than 8 of 10 overvotes
in the state occurred on the DS200, even though it only accounted for 4 of 10
votes cast.”
“8. It is likely that vote loss driven by the location of the
override button and content of the message displayed disproportionately
affected specific classes of voters, including language minority voters.”
For
election-day voting at poll sites, the increase in overvotes was 1681%.
|
|
2004 |
2008 |
Increase, 2004
to 2008 |
||||||
|
Votes Cast |
Over- Votes |
OV Rate |
Votes Cast |
Over-Votes |
OV Rate |
Votes Cast |
Over- Votes |
OV Rate |
|
|
Early Voting |
1,428,477 |
168 |
0.012% |
2,669,370 |
4,045 |
0.152% |
1,239,893 |
3,877 |
1167% |
|
Election |
4,866,061 |
760 |
0.016% |
3,849,489 |
10,954 |
0.285% |
Decrease 1,016,212 |
10,194 |
1681% |
|
Total In-Person |
6,294,538 |
928 |
0.015% |
6,519,219 |
14,999 |
0.230% |
224,681 |
14,071 |
1433% |
Table 2: Overvote Rates, In-Person Voting, Florida’s 2004 & 2008 Presidential Race (Page 6)
The report
criticizes the DS200’s large, brightly-colored "Don't Cast" and
"Cast" buttons which draw the voter’s eye away from the small black
and white explanation of the problem. The report also raises questions about
the method to be used by voters with non-English languages to select their
language before being able to read the display. (pp 14-15)
8. “Examining Florida’s High Invalid Vote Rate
in the 2008 General Election,
Part I: How Voting System Design Flaws
Led to Lost Votes” (19 pages)
http://www.wheresthepaper.org/09/FloridaInvalidVoteReportRevJune23_09.pdf
5. Handling of Write-in Votes
The ES&S
scanner does not divert ballots with write-in votes into a separate bin in the
ballot box. This is a problem because staff will have to interact with the paper
ballots by hand to find the ones with write-in votes, which creates security
and chain-of-custody concerns. Alternatively staff will have to view all the
computer-generated ballot images to find images of ballots with write-in votes.
The problem here is that ballot images are not voter-verified, and should not
be used as a substitute for the voter-marked paper ballots.
6. Future Legal Status of Vendor
ES&S
faces anti-trust challenges from the U.S. Department of Justice which may
impact their resources for providing equipment and services to their clients,
including New York City.
9. “BlackBoxVoting's Bev Harris Walks Us
Through the DOJ Anti-Trust Probe of ES&S”
(7 pages)
http://www.wheresthepaper.org/09/OpEdNews091221BBV_DOJ_AntiTrustProbeOfESS.htm
In addition, 14 states have opened
investigations into whether ES&S owns too much of the voting machine market
nationally: Alabama, Alaska, Arizona, California, Colorado, Connecticut,
Florida, Maryland, Massachusetts, New Mexico, Pennsylvania, Tennessee, Texas
and Washington. Also, New York’s Senator Schumer plans to hold the
congressional hearings on the situation.[2]
7. Vendor Attention to NYC
I believe
that New York City will get better quality attention and service from a small,
eager vendor than from a vendor that has had repeated difficulties for years in
serving its existing client base. With the purchase of Premier (formerly
Diebold), ES&S will face a large increase in customer demands. New York
City will be merely one more fish in a very large pond.
ES&S may
have provided adequate attention and service since NYC purchased their AutoMARK
Ballot Marking Devices, but up until now ES&S has had the motivation of
further sales. If NYC purchases the DS200 from ES&S, the company’s
attentiveness may diminish.
8. Inadequate Action by State Board of
Elections
Our State
Board of Elections has made several mistakes at the end of its ground-breaking,
rigorous certification effort.
A. Our State
Board has certified equipment that has not passed all its certification tests,
based on the possibility of compensatory procedures at the county level. Such
county procedures would be difficult to enforce in the best of times, but our
state and counties are now financially strapped, and may have difficulty
performing such rigorous procedures.
B. Our State
Board has certified the ES&S scanner system despite the failure of ES&S
ballot-configuration software to prevent the predictable error of accidental or
intentional vote-switching and other forms of incorrect tallying.
Vote-switching has been a major scandal across our nation in elections
compromised by use of electronic equipment.
Lever voting
machines make vote-switching difficult to implement and easy to detect, and our
use of lever machines for decades has not prepared us to think about
vote-switching by our voting machines as a constant possibility. We know that
when poll workers record lever machine tallies on the Return of Canvass forms,
errors can be made, but we expect such errors to be corrected easily in the
re-canvass procedure. With scanners and paper ballots, vote-switching may be
detectable only by hand-count audits. Compared to the re-canvass of lever
machines, hand-counts audits are time-consuming, cumbersome, and expensive. Our
state law requires only a flat 3% hand-count audit of scanners, which will
leave many races subject to undetected vote-switching and incorrect tallies.
C. Our State
Board has not released the full documentation related to certification and the
remaining flaws in the systems that are now certified. This forces most of the public
to evaluate the new equipment in a superficial manner, when a deeper evaluation
would be more appropriate.
9. Conclusion
Thank you
for the opportunity to offer you this information. I hope you will try to find
time to look closely at the nine attachments I have provided. I hope you agree
with me that equipment that allows vote-switching and tallying errors is not
acceptable for New York City.
I urge you
to select the Dominion ImageCast as New York City’s optical scanner.